On Saturday, September 24, California Governor Jerry Brown signed AB 2844, ignoring constitutional concerns and a groundswell of opposition.

Through multiple rewrites, the bill’s proponents have made clear that their purpose is to suppress boycott, divestment and sanctions (BDS) campaigns for Palestinian rights. Although it was eventually disguised as an anti-discrimination measure following opposition from thousands of constituents, legislative staff and Brown’s own Department of Finance, AB 2844 as signed is a clear threat to the First Amendment right to engage in human rights-related boycotts.

Civil rights and constitutional attorneys from the American Civil Liberties Union, National Lawyers Guild, Center for Constitutional Rights, Palestine Legal and the Bill of Rights Defense Committee/Defending Dissent Foundation all urged the Governor not to sign the bill, declaring it to be unconstitutional. ACLU of California called the bill “an unnecessary and polemical attempt to take sides in an ongoing political debate and to embroil the State of California in an inappropriate and costly effort to police, deter and criminalize political speech.”

Additional criticism of the bill came in the Senate Appropriations Committee analysis, which concluded that the bill would waste taxpayer money: In addition to direct costs of enforcement, it estimated an annual cost to the state of $140 million due to more expensive contracting. AB 2844 forces any entity that bids on a state contract for more than $100,000 to certify, under penalty of perjury, that it does not have a “policy” against a country that violates existing anti-discrimination law. Such a vague provision means that any such company or charity choosing not to do business with Israel, for whatever reason, or divesting from corporations that enable and profit from its human rights violations, could face a long and costly inquisition into its motives.

The Assembly Judiciary Committee’s analysis said that any bill penalizing protected political speech, as AB 2844 still threatens to do, presents “serious and perhaps insurmountable constitutional problems,” and noted: "It is difficult to imagine legislation more clearly calculated to have a chilling impact of the exercise of protected speech."

“With the passing of this bill the Governor contradicts his past support of farm worker boycott campaigns,” said David L. Mandel, an attorney and coordinator of the Coalition to Stop AB 2844. “Boycotts are a time-honored, constitutionally protected form of speech. We remain gravely concerned that the governor has ignored the serious constitutional concerns raised by constituents and legal experts.”

Nevertheless, opponents of AB 2844 said the changes they forced in the bill reflect both a moral victory and a sign that the uncritical backers of Israeli policies are losing the battle for public opinion. “Their desperation and panic are what led them to propose such McCarthyist legislation in the first place,” Mandel said.

“As the movement for Palestinian freedom and equality has grown in the U.S., so too have attacks against those working on these issues,” said Estee Chandler, a leader of Jewish Voice for Peace in Los Angeles. “U.S. politicians who endorse bills that seek to shut down criticism of Israeli policies are out of touch with their constituents.”

“Recent surveys show that now more than ever, young people, liberals, Democrats and people of color, including many American Jews, are appalled by Israeli human rights violations and support the use of boycott, divestment and sanctions as tools to achieve freedom, justice and equality for Palestinians,” Chandler added.

Despite lopsided final votes, AB 2844’s passage was a close call in the Legislature, Mandel said. “In two of five committees, it survived with no votes to spare. Most Capitol staff we spoke with, from both parties, shook their heads at how such a craven bill could advance. And a great many legislators said privately that they really wished the bill would ‘just go away.’ They expressed valid concerns that passage would invite litigation to counter its unconstitutional chilling of protected speech.”

AB 2844 is one of a series of anti-boycott bills introduced over the past couple of years -- in 14 states and the U.S. Congress in 2016 alone. Ten of these mandate the creation of McCarthyite blacklists of entities deemed to support or promote BDS, as does the widely criticized executive order signed by New York Gov. Andrew Cuomo in June.

“Regardless of the hoops and hurdles the sponsors have gone through to amend AB 2844, the purpose of this bill is and has always been to punish and suppress First Amendment-protected BDS campaigns for Palestinian rights,” said Rahul Saksena, staff attorney with Palestine Legal. “The bill's sponsors and supporters have been clear about that from the start.”